Hunt County v. Rains County

7 S.W.2d 648, 1925 Tex. App. LEXIS 1244

• Court: Court of Appeals of Texas
• Decided: April 17, 1925
• Docket: No. 3036.
• Status: Published

Opinions

LEVY, J.

(after stating the facts as above). In the light of the pleadings and the evidence it becomes necessary to determine first whether or not the boundary line between the two counties has once been surveyed and established on the ground under authority of law so as legally to settle that question. For it is expressly provided by article 1385 of the Statutes, on which the right to bring this action is based, as follows:

(1) “If it shall be found in any such cause that the boundary line in question has been heretofore established under the law then in force, the same shall be declared to be the true line, and shall be resurveyed and established as such.” * * * ■

(2) “And if, in the trial of any such cause, it shall be found that the boundary line between the counties involved has never been established and marked, or, if marked, has become indefinite and undefined, said court shall have power to re-establish the same and order it marked.”

And it is the firmly settled rule that a court has no power to direct another survey to be made and thereby establish another county boundary line different from the one established at some former period, when a county line has been once run, marked upon the ground, and established “in accordance with law.” Jones v. Powers, 65 Tex. 207; Pecos County v. Brewster County (Tex. Civ. App.) 250 S. W. 310; Lampasas County v. Coryell County, 27 Tex. Civ. App. 195, 65 S. W. 67.

The county of Rains was created in 1870. At that time provision for organization of a new county and for surveying and marking the lines on the ground in the first instance was usually made in the act of the Legislature creating the county. In such acts provision was made for running the lines defined in the act by commissioners, who were empowered to employ a competent surveyor to do the work. And under the general statutory law in force it was only in case the method of surveying on the ground by the commissioners was such as not to place the line or lines on the ground, in the first instance, in a position “sufficiently special and.well ascertained,” that the county or counties interested could resort to the general statutory method of having the true line run out again and marked anew on the ground by joint surveys made by surveyors respectively representing the counties. Article 1057, P. D. Further, as provided in that article, if the particular act did not provide for commissioners to do so, then the joint survey made by surveyors was the initial step for tracing and marking the lines, on the ground in the first instance, and that method was to be final. In this case the act creating Rains county did make provision for its organization, and for ascertaining, surveying, and marking the boundaries on the ground. By the act five commissioners named therein were expressly given “full powers to organize said county, to employ a competent surveyor to run the lines of said county, and, as early as practicable, to ascertain the center of said comity,” etc., “and to divide the county into'five precincts,” etc. The running out of the' ground of “the lines of said county” and the partitioning of the territory into precincts are necessary steps in the process of organization of a new county. And “the lines of said county” inclosed the particular territory set apart to the new county out of the territory of the original counties. The proceedings of the commissioners in establishing the boundaries would not be wholly ex parte on the part of the new county of Rains. In so executing the command of the Legislature the commissioners named in the act became and were the agents of the Legislature, and not of the new county or any oí the original counties. The consent neither of Hunt coun■ty nor of any of the original counties was necr essary in order for the commissioners to run out and mark on the ground “the lines of said county” defined by the act, as directed by the Legislature. Hence the acts of the commissioners, being under authority of law, in legal effect would be binding equally on all the counties affected as well as on the public generally, unless in running out the boundaries defined in the act they failed to place the lines on the ground in a position “sufficiently special and well' ascertained.”

That the commissioners named in the act did in fact cause “the lines of said county” to be designated, surveyed, and marked on the ground in pursuance of the act of the Legislature is not a debatable question in the record. It is affirmatively shown, and there is no evidence to the contrary, that the commissioners employed Perry Taylor, a competent surveyor, to run the lines, and that he, with the assistance of all the commissioners and others; surveyed and ran out the lines as provided and directed by the act, and actually marked and established upon the ground the localities of the lines. This was done in the month of June, 1870, after the act took effect on June 9, 1870. The testimony was by witnesses competent to testify‘thereto, living in the locality, personally acquainted with the surveyor and the commissioners, having knowledge of what they were doing at the time, seeing them in the process of surveying, and acquainted with the marking made on the ground. One of the witnesses actually accompanied the surveyor and the commissioners, saw the lines run and the comers marked and established, knew the-land surveys the lines passed through, and personally knew the owners and occupants of most of the land surveys and the known objects reached. As testified, the line actually run and established on the ground by the surveyor and commissioners, as pertains to the line in controversy, began at a point in the Wm. P. Buzan, which survey was then and is now existing. A stake was driven into the ground at this point, at between 50 and 100 feet north of a ravine, and a large white elm tree located near the stake, bearing “a little east of south,” was marked on the side next to the stake “R. O.” This is the northwest corner of Rains county as claimed. Prom this point the line was run on the ground in a southwesterly direction across the east end of the Henry Riley survey then existing, and through the east end of the Marshall Crawford survey, through the Samuel Hooker survey, through the James T. Hooker survey, through the Robert Harris survey, through the W. D. Winston survey, across the Hooker creek, and passing by what was then known as the Hooker schoolhouse on the W. D. Winston survey, through the James T. Hooker survey to Hooker’s Mill, located on the east bank of Sabine river.

The evidence, though, concerning the running out of the lines by the commissioners, is entirely oral. A map or plat of the lines so run and marked does not affirmatively appear to have been returned by the surveyor or the commissioners. If they ever made and returned one it was destroyed at •the. time the courthouse of Rains county and all the county records were destroyed by fire in 1879. It does affirmatively appear that no map or plat directly made by such surveyor or commissioners was ever filed in the general land office. However, the fact of not making and returning for record a map or plat, if they did not do so, would not make invalid the acts of the commissioners, since the act appointing them and the statutory provisions in force did not require nor enjoin upon them the duty to do so. Therefore if it be true, as found by the jury, that the boundary was run out and marked on the ground in 1870, as alleged by appellee, then this was done in accordance with the law then in force.

Did the surveyor in 1870 place the line on the ground* in a position “sufficiently special and well ascertained” and exactly in the localities alleged by Rains county? The jury, on the evidence, determined the issue as to localities in favor of Rains county. This finding of the jury, sufficiently supported by the evidence, would fix the northwest corner of Rains county, as marked by the commissioners, at a point in the Wm. P. Buzan survey, thence east to the west end of the McMillan line, and continuing east with that line to the northeast corner of Rains county. The McMillan line as run on the ground in 1863 is conclusively,’ without doubt, shown in the record. The McMillan “west end” is conclusively shown to be on the east line of Hunt county and at the southwest corner of Hopkins county. The post oak called for at this point by the McMillan survey is there now, and identified by those competent to testify there to. It is described as a “post oak marked S. W. and bears N. 88 E. 395.5 varas,” meaning from tbe west end of tbe McMillan line and tbe southwest corner of Hopkins county. Tbe “Wm. P. Buzan survey” then existing, and now, was identified and located by those competent to know. Also tbe “Hooker mill” on tbe east branch of Sabine river is clearly located on tbe ground. The precise point or place of tbe call, “west four miles into Hunt county,” is fixed in tbe Wm. P. Buzan survey. When that point is once fixed bn tbe ground tbe next call is easily determined, since it must be found by running “thence in a southwestern direction to Hooker’s mill on tbe east branch of Sabine river.” All these markings are definite and known objects, existing and located on tbe ground by tbe evidence beyond doubt. In fact, there is no dispute about tbe true location of these objects and their locality. As held:

“When a county line has been once run, marked upon the ground and established in- accordance with law, it cannot be said to be indefinite. It ’may be incorrect, but nevertheless well defined. None of the statutes seem intended to give power from time to time to county commissioners’ courts to correct what may have been incorrect in the establishment of a county line on the ground; but seem intended to give a means by which the line or lines may be made definite and certain, and when so rendered, in accordance with the statute, whether correctly run and marked or not, the statutory declaration that ‘the line so run and marked shall thereafter be regarded as the true boundary line between the counties,’ ought to be given full effect and held as a prohibition to any further action looking to the establishment of some other line.” Jones v. Powers, 65 Tex. 207. .

But by taking the point established in tbe “Wm. P. Buzan survey” as marked by tbe commissioners as tbe west end of tbe third call, and as tbe northwest corner of Rains county, it may be seen that it measures on tbe ground “into Hunt county” more than “four miles west” of tbe west end of tbe McMillan line or tbe southwest corner of Hopkins county, and to which corner a part of tbe east line of Hunt county ties. It is at-least, according to the evidence, 4.94 miles distant. Tbe call was purely for course and distance, and tbe line as run was clearly incorrect in point of distance. Tbe line is extended nearly a mile beyond tbe call designated in tbe act. It evidently was not contemplated, in tbe original location of tbe lines on tbe ground by the commissioners, to make a survey above' tbe statutory limit. They bad no discretionary power to arbitrarily extend tbe length of a line fixed by'the act, but were authorized to designate, survey, and mark tbe boundary line as defined in tbe act, in substantial, although not precise, compliance therewith. The extension of tbe line was evidently occasioned, as must be assumed, by a mere mistake of measurement on tbe ground. Therefore, does legal objection exist to tbe maintenance of tbe present suit ■ to relocate tbe boundary defined by tbe act upon tbe ground that the original marking of tbe line was in substantial extension above tbe real call? It is evident that the question must turn upon whether or not article 1400, Rev. Stat., is applicable to tbe ease.

Article 1400, enacted in 1895 as article 822, reads as follows:

“The county boundaries of the counties in this state as now recognized and established are adopted as the true boundaries of such counties, and the acts creating such counties and defining the boundaries are continued in force.”

As held, tbe article is in general terms and applies generally to official location of boundaries, and is not limited to tbe line or lines established on the ground in accordance with tbe statute providing, in specified cases, for joint surveys made by surveyors respectively representing tbe counties. Hale County v. Lubbock County (Tex. Civ. App.) 194 S. W. 678. Tbe words “as now,” as used, mean “till now,” or “until tbe present time” of tbe date of the act. Tbe article clearly implies a wrong boundary was “established” on tbe ground in tbe first instance, to indicate where the statutory boundary should be run, and that it was thereafter “recognized” or treated as tbe true boundary of tbe counties affected -“until tbe present time” of 1¿95. No limitation is placed upon tbe error of tbe survey of tbe “boundary” so “recognized and established” till “now,” in 1S95. And to authorize tbe courts to place a limitation.upon the erroneous excess allowable above tbe statutory line, it must appear in tbe given case, as a matter of law, to be a grossly ex-, cessive annexation of territory, in violation of law as affecting a reduction of tbe area of tbe county affected below tbe constitutional requirement then existing.

Such conditions do not appear here. Hence, was tbe line as established “recognized?” No proceedings leading to a relocation of tbe line were bad by tbe commissioners’ court of either of tbe counties from tbe time it was established at a point in the Bu-zan survey in 1870 to a time just before the institution of this suit in 1923. This is a significant fact of passive recognition. And the evidence affirmatively shows that tbe commissioners’ court of each of the counties officially acted in reference to the line in establishing precincts, voting precincts, and laying out roads. Each county, though separately, exercised jurisdiction up to tbe limits of tbe line. Votes cast by tbe residents along that line were returned to and counted by tbe officers. Jurors were selected with reference to the line. Taxes were rendered and assessed with reference to tbe line, and tbe commissioners’ court approved tbe tax rolls. Deeds to land were registered and schools were -located with reference to the line. All ■ this evidence was sufficient to sliow a recognition of the line by the commissioners’ courts of the two counties, and by the officers charged with duties respecting boundaries, for many years both prior to and since 1895, and to authorize the verdict of the jury. And, too, the map of Rains county originally made in the general land office in 1873 by the commissioner of the state, and that has been in use in that office from that date to the present, shows the northwest corner of Rains county to begin in the Wm. P. Buzan survey; thence east to the southwest corner of Hopkins county, and on to the northeast corner of Rains county. The abstract of land titles authorized by law and published by the general land office shows portions of the surveys through which the line passes in Rains county,- and the other portions of these surveys in Hunt county.. This would go to show that the line as proven to be run by the commissioners had been also recognized by the general land office for many years as the boundary line between the two counties. The mere fact that there was some confusion with respect to whether parts of certain surveys were in one county or the other, or whether the line runs by certain farms or localities, would not affect the operation of the article. Hence it would appear that the facts of this case'come within the terms of the article; and its terms should be held conclusive of the appeal, unless, further, as urged, the Constitution does not admit of its application to the special facts, for to so apply it would effect a deduction of territory from one existing county and add it to another existing county.

The present constitutional provision claimed to be applicable is section 1, subd. 3, of article 9, reading:

“Section 1. The Legislature shall have power to create counties for the convenience of the people, subject to the following provisions: * * *

“Third. No part of any existing county shall be detached from it and attached to another existing county until the proposition for such change shall have been submitted, in such manner as may be provided by law, to a vote of the electors of both counties, and shall have received a majority of those voting on the question in each.”

This present provision appears in the Constitution adopted in the year 1876, and was not in the Constitution of 1869 in force at the time of the creation of Rains county in 1870.

Whether or not the article in question if applied to this case falls within the prohibition of the particular provision of the Constitution depends upon the character of the rer lief it provides. It does not evidence the intention of the Legislature by amendatory act to rebound existing counties by detaching territory from the one county and attaching it to another. The manifest intention of the Legislature was the legalization of boundaries formerly established on the ground, to indicate where the statutory lines should be run, and which were thereafter '“recognized” or treated as the boundaries, even though such boundaries be subsequently discovered to be incorrect or not the true boundary lines. The effect is merely a continuation of the boundaries “recognized and established” at the time of the origin of the counties and survey made on the ground as a method of defining the boundaries. As previously construed and applied to the eases, the article is “a validating or curative act merely.” Hale County v. Lubbock County (Tex. Civ. App.) 194 S. W. 678; Pecos County v. Brewster County (Tex. Civ. App.) 250 S. W. 310; Stephens County v. Palo Pinto County (Tex. Civ. App.) 155 S. W. 1006, and other cases. As stated in the case of Stephens County v. Palo Pinto County, supra:

“It was the purpose of the ‘act,’ to quiet all controversies over county boundary lines where, at the time the Act took effect, such lines were established (that is definitely marked and known) and recognized, irrespective of the accuracy of such surveys. It is a wholesome statute, and should be liberally construed and enforced.”

The very object of curative or confirmatory acts is) to give effect .to the .intention of parties to enable them to carry into effect that which .they have designed and attempted, but which failed of its expected legal consequences only by reason of some statutory disability or some irregularity in their action. The rule in regard to curative statutes is that if that which is legalized is within .the authority of the Legislature to cure or modify by a previous statute, if enacted, it may do so by a subsequent one. 2 Lewis Statu. Con. p. 1229; Cooley on Con. Lim. p. 531. But of course the Legislature cannot validate an act that it is forbidden by the Constitution to authorize in the first instance. Hutcheson v. Storrie, 92 Tex. 685, 51 S. W. 848, 45 L. R. A. 289, 71 Am. St. Rep. 884. This then depends upon whether the article was intended to have retrospective operation. For if the article was to have retrospective operation only, which we think to be the fact, the Legislature could, as applied to the present case, have changed or reformed the lines of the two counties in 1870 without in any way intrenching on the Constitution, except in so far as reducing either county below the area of 700 square miles. The present provision of 1876 was not in the Constitution of 1869, which was in force up to 1876. And such act, if passed, would not have interfered with any vested right of Hunt county. A county has no vested right in county boundaries. Laramie County v. Albany County, 92 U. S. 307, 23 L. Ed. 552; Cooley on Con. Lim. p. 266. As laid down in Milam County v. Bateman, 54 Tex. 153:

“Counties in their relation toward the state may be viewed in a twofold aspect: One, which pertains to their political rights and privileges; the other, to their rights of property. Over the former, the Legislature as the representative of state sovereignty can exercise absolute power unless restricted by the organic law. * * * Hence the political rights and privileges delegated to counties are not- within the constitutional prohibitions against retroactive laws and those which impair vested rights.”

The Legislature has “full power over the subject” of county boundaries, subject only to constitutional limitations upon that power. Trinity County v. Polk County, 58 Tex. 321. An unauthorized survey of county lines is a subject-matter of validation, effective from its origin. Wright v. Jones, 14 Tex. Civ. App. 423, 38 S. W. 249. Ordinarily curative statutes are by their very nature intended to act upon past transactions, and are therefore wholly retroactive. 36 Cyc. p. 1221. And, the language used in the article being considered, by fair implication it is intended that it should react back and relate to past cases, validating such boundaries from the date that they were “established and recognized.” That is the test according to the rule laid down. Rockwall Co. v. Kaufman Co., 69 Tex. 172, 6 S. W. 431; Mellinger v. City of Houston, 68 Tex. 36, 3 S. W. 249. In this view, the article would be applicable to the present ease and would not be subject to the constitutional objection, for relating back, as the article does, to the time of origin of the establishing the boundary “recognized,” the Constitution of 1869 and not of 1876 would determine its application. Especially so since the act of the commissioners in fixing the particular line on the ground, as done, was a mere irregularity in exercising the powers conferred, and not of absolute invalidity of any legislative authority .to lay out the lihes.

A narrow application of the article, not plainly required by its terms and intention, would not be in the public interest. In sound policy a county line that has been located and acquiesced in for many years, as here, should not be changed unless expressly •required by law .to be done, even though such line was not the correct one in the first instance. For interminable confusion would result from the change of conditions of such long standing. Road and school bond issues would be affected, as well as individual privileges and status in respect to the line.

We have considered all the assignments of error, and conclude that they should be overruled.

The judgment is affirmed.